Hawaii’s police union has lost its first legal battle in an ongoing fight to keep officer misconduct records hidden from public view.

On Friday, First Circuit Judge Dean Ochiai ruled that when a police officer is suspended or fired for misconduct such information is a matter of public record under state law.

Ochiai specifically cited Act 47, which was signed by Hawaii Gov. David Ige in September. The legislation eliminated a decades old exemption in the public records law that effectively kept information about officer misconduct confidential except in the rare circumstances that resulted in discharge or termination.

After the law took effect, Civil Beat requested arbitration decisions from Hawaii’s four county police departments related to officer misconduct.

Right, Kathy Cruz hugs Don Faumunia during a SHOPO rally held at the Capitol Rotunda. July 6, 2020
SHOPO supporters rallied at the Hawaii State Capitol earlier this year to oppose police reform measures. SHOPO attorney Keani Alapa argued Friday that the union should be more involved in deciding what disciplinary files are made public. Cory Lum/Civil Beat/2020

The State of Hawaii Organization of Police Officers responded by filing several legal challenges in all the counties arguing that Act 47 should be declared unconstitutional because it infringed on officers’ privacy rights and violated the union’s collective bargaining agreement, which includes numerous confidentiality provisions meant to keep officer misconduct under wraps.

Friday’s hearing before Ochiai involved a SHOPO request for an injunction to block the city and county of Honolulu from releasing public documents to Civil Beat.

Keani Alapa, the attorney representing SHOPO, argued that the union should at least have the ability to review the documents the city planned to make public before the records could be disclosed so that it could weigh in on what information should be redacted.

Alapa said the union already had concerns about one arbitration decision that was released under the new law involving an officer who was disciplined after he was accused of drunkenly crashing his car into a parked vehicle and fleeing the scene of the accident.

“This case is about transparency, but the city has kept SHOPO in the dark when we have a direct interest in these records,” Alapa said.

Ochiai rejected most of SHOPO’s legal arguments when it came to the release of public records, and instead made clear that the union must live with the realities of the new law.

“So let me ask you this question,” Ochiai said as he addressed Alapa directly.

“Let’s say prior to Sept. 15, 2020 you could drive any car you wanted, but as of Sept. 15, 2020 the state by a statutory change outlawed the driving of red cars. Today, can we drive red cars — and this is just a hypothetical — or do we follow the law that’s been changed?”

“We follow the law that’s been changed,” Alapa said.

Ochiai pointed out that under Act 47 county police officers will be treated the same as all other public employees.

“This is a really decisive moment for police accountability here in Hawaii.” — ACLU Hawaii attorney Wookie Kim

For decades, the public records law said that misconduct resulting in suspension or discharge was subject to disclosure under the Uniform Information Practices Act, except in the cases of county police officers. The union was successful in carving out an exemption in 1995 that made officers’ suspension records secret although termination records had to be disclosed once all grievance proceedings were over.

The Hawaii Legislature overturned the exemption this summer in response to years of high profile cases of officer misconduct in Hawaii and nationwide protests sparked by the killing of George Floyd, a Black man, by white police officers in Minneapolis, Minnesota.

The union raised a separate issue about Act 47 that Ochiai said will be the subject of a hearing in January. Under the law, county police departments must disclose the names of officers who were suspended or fired for misconduct in annual reports to the Legislature.

The union is concerned that those names will be disclosed even before the officers have had a chance to exhaust all their appeals through the grievance process laid out in the SHOPO collective bargaining agreement.

UIPA only allows that information to be made available after a suspension or termination decision is final, at the end of any appeal or grievance process.

More than two dozen people listened in to Friday’s arguments, which took place over video teleconference due to the ongoing coronavirus pandemic. Among them was Wookie Kim, a staff attorney for the ACLU of Hawaii.

The organization has been taking a more proactive role when it comes to police accountability in the islands, and recently filed a civil rights lawsuit against Honolulu in a case involving an officer who arrested a 15-year-old who was being bullied by the officer’s son.

Kim said the ACLU called on its members to watch SHOPO’s arguments Friday and to remain engaged as the union tries to use the courts to subvert Act 47.

Police officers should be subject to as much scrutiny as other public employees, including firefighters, tax clerks and prosecutors, Kim said. If anything, they should be held to a higher standard because they have the legal right to make arrests and use lethal force.

“This is a really decisive moment for police accountability here in Hawaii,” Kim said.

“The powers that be finally determined that the special exemption that police officers have had for so many decades should not have existed in the first place, and now there’s a recognition of that in the community. It’s not just a group of legislators who want this, but it’s we the people, the citizens and residents of Hawaii who are fed up with the special treatment.”

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